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Director, Dayalbagh Educational Institute Deemed University v/s Devendra Pal Singh & Others

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Company & Directors' Information:- B G EDUCATIONAL INSTITUTE PRIVATE LIMITED [Active] CIN = U80903GJ2010PTC060742

Company & Directors' Information:- K V R INSTITUTE PRIVATE LIMITED [Strike Off] CIN = U80903TN2001PTC046438

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    Special Appeal Defective Nos. 609 & 617 of 2020

    Decided On, 02 December 2020

    At, High Court of Judicature at Allahabad


    For the Appellant: Saran Kumar, Advocate, Shashi Nandan, Senior Advocate. For ethe Respondent: C.S.C., Siddharth Khare, Advocate.

Judgment Text

An application is preferred to have exemption from filing the certified copy of the order dated 19.02.2020 passed by learned Single Bench which is under challenge in the instant appeal.For the reasons mentioned in the application, the application is allowed. The appellant is exempted from filing certified copy of the order dated 19.02.2020 passed by learned Single Bench.Exercising the powers conferred by Section 3 of the University Grants Commission Act, 1956 (hereinafter referred to as "Act, 1956"), the Central Government by a notification dated 16.05.1981 on the advice of University Grants Commission declared the Dayalbagh Educational Institute, Agra comprising of DEI Women's Training College, DEI REI Degree College and DEI Engineering College, Dayalbagh, Agra deemed to be a University for the purpose of the Act, 1956.Deputy Secretary to the Government of India, Ministry of Education under a communication dated 21.02.1985 conveyed to the Director, Dayalbagh Educational Institute, Dayalbagh, Agra that the Government of India, in principle, is agree for taking over the non-university technical and general educational institutions at Dayalbagh for administrative and academic purposes. A request, hence, was made to have necessary amendments under the Rules of the Institute. Accordingly, necessary amendments were carried and as per the amended provision, on taking over non-university educational institutions by the Institute, the existing members of the teaching, non-teaching staff of the various non-university educational institutions are to continue their services in the Institute on their existing terms and conditions in the matters relating to pay, allowances and other financial benefits.The Principal Secretary to the Government of Uttar Pradesh, Department of Technical Education, Section-2 vide an office order dated 03.04.1986 conveyed to the Governor of Uttar Pradesh for affiliation and integration of DEI Technical College, Dayalbagh, Agra with the Deemed University subject to condition that all rights of the employees of the technical college shall be protected and no interest of such employees shall be adversely affected due to the affiliation and integration. By another office order dated 06.12.1994, approval of the Governor for affiliation and integration of Prem Vidyalaya Girls Inter College, Dayalbagh, Agra was also conveyed. This affiliation and integration too was subject to certain conditions including protection of all existing rights of the existing employees including their payment of wages, allowances, pension, group insurance, general provident fund, etc.The Committee of REI Intermediate College, Dayalbagh, Agra in its meeting dated 25.06.2004 recommended for taking over academic and administrative control of the College by the Dayalbagh Educational Institute (Deemed University). The recommendation aforesaid was subject to the condition that the interest of the employees of the College to be fully safeguarded without any adverse effect to their present interests. The recommendation was approved by the Governor of Uttar Pradesh and vide the document (Annexure 17) dated 12.09.2008, same was communicated to the appellant. The affiliation and integration of the REI Inter College, Dayalbagh, Agra was subject to certain conditions which are as under :-"(A) Under the existing arrangement in the council regulations, Diploma/Certificate issued by Dayalbagh Educational Institute, Agra shall be equivalent to the certificates of Madhyamik Shiksha Parishad.(B) With regard to R.E.I. Inter College Dayalbagh, the provisions of Payment of Salary Act, 1971 shall be ineffective with immediate effect and the amount of grant to be allocated under the head of salary of the aforesaid school shall not be arranged from income-expenditure of Department of Secondary Education rather from income-expenditure of Department of Higher Education in the next financial year 2009-10 which shall not result burden of any additional expenditure upon the State Government.(C) As a result of merger of R.E.I. Inter College Dayalbagh, Agra into the aforesaid institute, the teachers and non-academic staff working in the college shall have full protection, as it is, according to Section-45 of M.O.U of the institute.(D) With regard to merger of the aforesaid inter college into the aforesaid institute, written consent of the teachers and non-academic staff working in the college shall be obtained which shall be certified and made available to the Government by District Inspector of School, Agra.(E) Sanction for merger of the aforesaid inter college into the institute shall be granted keeping in mind the conditions of the previously granted sanction to Prem Vidyalaya Girls Inter College, Dayalbagh, Agra.(F) This arrangement shall be effective from Educational Sessions 2009-19 (Examination Year, 2010)."Necessary approval for affiliation and integration of REI Inter College, Agra was also granted by the Governor of Uttar Pradesh invoking powers under Section 9(4) of the Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and the same was notified under an order dated 11.12.2012 (Annexure-19).The affiliation and integration was accepted by all teaching and non-teaching staff in their meeting held on 15.09.2008 at 03:00 P.M.The affiliation and integration of REI Inter College, Agra w.e.f. 11.10.2012 was challenged by way of filing a petition for writ in the year 2015, i.e., Writ-A No. 47512 of 2015 (Devendra Pal Singh and others Versus State of Uttar Pradesh and Others) on the several counts including that Section 9(4) of the Act, 1921 does not empower the Governor for integration of an institution of intermediate level with a University and further that the Act, 1956 does not permit to have any educational institutional that is not awarding degree as a part of University. The petition for writ aforesaid came to be accepted by learned Single Bench under the judgment impugned dated 19.02.2020 setting aside the office order dated 11.10.2012. A direction was also given in the terms as under:-"In the present case, since the inter college has been de-recognized, the teachers of the inter college, who were duly selected by the U.P. Secondary Education Service Selection Board, have to be accommodated as lecturers in their respective subjects in other similar colleges. The Director of Education (Secondary), U.P., Lucknow is therefore directed to ensure that the petitioners are accommodated in other recognized inter college, on which provision of U.P. Intermediate Education Act, 1921, U.P. Secondary Education Service Selection Board Act, 1982 and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are applicable, within the District Agra. Since, the petitioners have been continuously in service, therefore, it goes without saying that they shall be entitled to their earlier seniority also in such appropriate colleges. The Director shall ensure that such an exercise is completed within a period of four months from the date a certified copy of this order is placed before him and in case vacancies within the District Agra are not available in the aforesaid period of four months, they shall be accommodated immediately thereafter whenever such vacancies first accrue."The instant appeal is before us to examine correctness of the judgment aforesaid.While accepting the petition for writ, learned Single Bench noticed two contentions advanced on behalf of the respondent-petitioners and those are; (1) under Section 9(4) of the Act, 1921, the State Government is not having any power to pass an order to disaffiliate an inter college and further to place the staff working there at disposal of a University or an institute deemed to be a University; (2) under the Act, 1956, a University or an institution deemed to be a University can have jurisdiction only for the courses awarding degrees and not otherwise.The first issue though has been noticed but has not been adjudicated by the writ Court. The writ petition has been accepted solely on the count of second issue. The discussion made in that regard deserves to be quoted and that is as under :-"6. Section 2(f) of the University Grants Commission Act, 1956 (U.G.C. Act) defines University and Section 3 defines Deemed University. Admittedly, respondent no.8 is a Deemed University. Section 22 of the U.G.C. Act provides that University shall have right of conferring or granting degrees. A perusal of the U.G.C. Act shows that the same is for the purposes of creating a Commission for regulating higher education in the entire country. The same has no concern at all with the secondary education. The Universities including a Deemed University can only confer degree for higher education. The secondary education, i.e., intermediate and high school education in the State of U.P. is covered by the Act of 1921 (or Central Board of Secondary Education, Indian Certificate of Secondary Education or Indian School Certificate, with which we are not concerned here). Therefore, there is clear-cut distinction in the entire State of U.P. with regard to higher education being under exclusive domain of the Universities or Deemed Universities and secondary education being with the Intermediate Education Board of the State of U.P. Admittedly, the institution concerned was recognized under the Act of 1921 and Section 9 of the same gives ample power to the State Government to pass orders with regard to matters covered under the said Act. Appointment and removal of teachers of an inter college can be made only as per the Act of 1982 and the provisions of the Act of 1921 stands superseded to the said extent. Further, neither the Act of 1982 nor the Act of 1921 confer any power upon the State Government to transfer teachers of an inter college to a University. Appointment of teachers in a University can only be as per the qualifications prescribed by the U.G.C. Act or other law applicable. The Intermediate Education Act cannot by any stretch of imagination cover appointment of teachers in a University. The transfer of petitioners, who were teachers with an inter college, to a Deemed University is in violation of the provisions of Act of 1982 as the same does not provide transfer of any teacher from an inter college to a University. Thus, the impugned order dated 11.10.2012 to the said extent is bad and is set aside."In appeal, the argument advanced by learned counsel for the appellant is that learned Single Bench failed to appreciate that the Act, 1956 nowhere restrains Universities from getting Intermediate courses affiliated with it. It is asserted that non-availability of prohibitory clause under the Act, 1956 empowers a University to have affiliation of Intermediate course and integration of an intermediate institution with it and in the instant matter, same has been done in accordance with the law by the Government of India. In addition to the argument aforesaid, it is also urged that the doctrine of acquiescence restrains the respondent-petitioners from questioning correctness of the affiliation and integration of REI Intermediate College w.e.f. 11.10.2012. According to the appellant, it is not only the simple acquiescence, but, as a matter of fact, a conscious waiver of the rights by accepting affiliation and integration in writing.Heard learned counsel and examined the entire scheme extending cradle to the Act, 1956.The Act, 1956 makes provision for the co-ordination and determination of standard in Universities and to establish a University Grants Commission for that purposes. As per the statement of objects and reasons, the Constitution of India vests Parliament with executive authority of co-ordination and determination of standards in institutions for higher education or research, scientific and technical institutions. Such co-ordination and determination of standards was not possible without having say of Central Government in settling standards of teaching and examination in Universities. It was also found necessary to ensure that available resources be utilized to the best possible effect. To do so, it was found necessary to have a Commission for determining and allocating funds to the Universities by the Central Government. For this purpose, University Grants Commission was established as a corporate body under the Act, 1956.The Act, 1956, as per the statement of object, regulates system of imparting higher education, research and also streamline entire system of funding to the Universities which are essentially imparting higher education and also have monopoly to award degrees.The provisions of the Act, 1956 reflect the same object. Chapter II of the Act, 1956 pertains to establishment of the Commission. As already stated, the Commission is a body corporate and its composition consists of teachers working in Universities, experts in agriculture, commerce, forestry, industry, engineering, law, medical science and other learned professions. The composition clearly indicates that a Commission is required to be a body of experts in different fields to enrich higher education to have intellectual, developmental and promotional activities in various fields. The Commission, as a matter of fact, is a torchbearer for higher education and research work that ultimately accelerate and promote developmental activities of the nation. The powers and functions of the Commission prescribed under Chapter III of the Act, 1956 indicates its significant role in the field of higher education. For ready reference, it would be appropriate to quote Section 12 of the Act, 1956 that reads as under:-"12. Functions of the Commission. - It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may -(a) inquire into the financial needs of Universities;(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose;(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem [necessary or appropriate for the development of such Universities or for maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose:Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve;[(cc) allocate and disburse out of the Fund of the Commission, such grants to institutions deemed to be Universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely: -(i) for maintenance in special cases,(ii) for development,(iii) for any other general or specified purpose;][(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and disbursing out of the Fund of the Commission such grants as the Commission may deem necessary;](d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation;(e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be;(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.A complete reading of Section 12 makes it clear that the funds allocated by the Commission to the different Universities has to be used for raising standards of the higher education in every sphere. This provision empowers use of funds for imparting higher education and also for research in different fields. As per Section 12-B, no fund can be given to a University not declared by the University Grants Commission fit to receive such grant. This provision, in quite unambiguous terms, emphasized that only the Universities which are meeting with the aims and objects of the Act, 1956 may receive grant and not otherwise. The Commission to ensure working of the Universities to achieve the aims and objects of the Act, 1956 have power to inspect such institutions. If a University fails to comply with the recommendations of the Commission, then it has to face the consequences as prescribed under Section 14.It is important to notice that as per Section 20, in the discharge of its functions, the Commission shall be guided by such direction on the question of "policy relating to national purposes" as may be given to it by the Central Government. If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of "policy relating to national purposes", the decision of the Central Government shall be final.As per Section 22, the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. It can be said that once Dayalbagh Educational Institute has been declared as an institution deemed to be a University which is empowered to award degrees and the degrees includes diplomas and certificates. The thrust is to have best available higher education and research for development and promotion of society and nation in every sphere.The argument advanced by learned counsel for the appellant that the Act, 1956 nowhere prohibits for awarding certificates of Intermediate education though appears to be attractive, but, is bereft of merit in view of the fact that essentially the degrees pertain to higher education whereas the qualification of Intermediate is not of that standard. It is a buffer qualification in school education and higher education. Such pre-University education is not a subject matter of th

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e Universities to which the Act, 1956 applies or for which that Act was made. On examination of complete scheme of the Act, 1956, we are satisfied that awarding certificates of Intermediate education is not a work assigned to the Universities. In the State of Uttar Pradesh, Intermediate and High School education is in the domain of the Act, 1921. To examine merits of the argument advanced, we are supposed to touch its extreme terminals. If we accept the argument advanced on behalf of the appellant then that may lead to an absurdity to the extent that this will allow even to affiliate Montessori or Kindergarten education with a University as the Act nowhere prohibits for that. This would not be in tune of the objects of the Act and the purpose for which that was enacted. By accepting the argument advanced on behalf of the appellant, we would be going to frustrate the purpose of the legislature in having a special body for higher education that affects national policies.It would also be appropriate to state that affiliation and integration of the Institution is not simply an issue with regard to service conditions of some employees, it is an issue that relates to the standards of higher education and those cannot be compromised at any cost.So far as the argument advanced with regard to acquiescence on behalf of the appellant is concerned, suffice to state that the doctrine of acquiescence or even of waiver cannot be pleaded and extended to contravene a statute.In the light of whatever stated above, we do not find any wrong with the conclusion arrived at by learned Single Bench.The appeal, for the reasons given above, deserves to be rejected, hence the same is dismissed.Learned Single Bench while accepting the writ petition issued directions to a very limited extent that is for transfer of the petitioners to the educational institution of intermediate level within the district of Agra. While affirming the directions so given, we deem it appropriate to direct the Government of India to reconsider the issue relating to the grant of affiliation and integration of REI Intermediate College, Dayalbagh, Agra with Dayalbagh Educational Institute, Agra in true spirit of the Act, 1956.